Lindsey v. Gordon , 13 Me. 60 ( 1836 )

Weston C. J.

There was a promise absolutely to deliver a load of wood, in thirty days. If the defendants failed to do so, they were to redeliver the vessel. They did neither at the end of that time; although the vessel was then in existence, and in their power. They are therefore liable to pay the wood ; and have no excuse for their failure to do so. By accepting a partial payment after the thirty days, we consider the plaintiff to have waived his right to the immediate return oí the vessel, and to have assented to the continuance of tho contract and that the vessel should still continue in the possession of the defendants. It remained then at the plaintiff’s risk; and being lost without the fault of the defendants, redelivery by them is excused, and no action lies against them therefor.

Neither of the notes was due at the commencement of this action; and if the defendants still remain liable upon them, they cannot he recovered in this suit. The wood was to he paid in thirty days, and indorsed on the first note. The partial payment made and indorsed, more than ten months before that note fell due, roust be understood to have been paid and received on account of the wood. The value of the load of wood, to be paid by the defendants, is to be ascertained. From that sum the amount indorsed on the first note is to be deducted, and the plaintiff is to have judgment for the difference, with interest from the time the wood should have been delivered.